Sapientia Khasatshi Shibachi for and on behalf of the estate of Andrew Shibachi Ikhunyalo v Boaz Ashiono Shisanya [2015] KECA 54 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  W. KARANJA, MARAGA & KANTAI  JJ.A)

CIVIL  APPEAL NO. 34 OF 2014

BETWEEN

SAPIENTIA KHASATSHI SHIBACHIFor and on behalf of the estate of

ANDREW SHIBACHI IKHUNYALO.......................................... APPELLANT

AND

BOAZ ASHIONO SHISANYA .............................................. RESPONDENT

(An appeal from the judgment and decree of the high court of Kenya at

Kakamega  (Dulu, J.) dated 13th February, 2014

in

H.C.C.A. NO. 43 OF 2010)

*******************

JUDGMENT OF THE COURT

1. In 1978, Andrew Shibachi Ikhunyalo (the deceased) bought all that piece of land situate in Ikolomani Division and known as Title No. Idakho/Shiseso/955 (the suit land) from Simeon Ashiono  Musindi  (Simeon) for Kes.8,500/=. It would appear that at that time there was a dispute over the ownership of that land between Simeon and  Boaz  Ashiono  Shisanya  (Boaz). The latter claimed entitlement to a half of the suit land.

2. On a date which is not clear from the record, Boaz lodged  a dispute before Ikolomani Land Disputes Tribunal (the Tribunal) claiming his alleged half share of the suit land.   After hearing that dispute, the Tribunal granted his claim and directed that the suit land be shared   equally   between   Boaz   and Simeon. Aggrieved by that decision, the deceased, who as we have stated had claimed  to  have  bought  the whole  of the  suit land  from Simeon, apparently complained    to the District Officer Ikolomani  who  on  26th   August  1999   wrote  to  the  Senior Resident Magistrate  Kakamega and stated that the dispute had to be re-heard and requested the court not to do anything about the award.   It is not clear if that letter was received by the court or  brought  to  the  attention  of  the  presiding  magistrate  for whatever  it  was  worth  as  on 13th October  1999,  the  Senior Principal  Magistrate's  Court adopted  the Tribunal  award  as a decree  of  the  court  in  SPM  Misc.  Award  No.  127  of  1999 without mention of it.

3. There was no appeal against that adoption order. Instead in 2003 the deceased filed appeal No. 74 of 2003  before the Provincial Land Disputes Appeals Committee (the Appeals Committee) at the Provincial Commissioner's office Kakamega.   That appeal was heard on  14th  June  2006  and the Appeals  Committee overturned the Tribunal Award and awarded the land to the deceased. That decision of the Appeals Committee was on 30th July, 2007 also adopted and made an order of the court by the Chief Magistrate's Court at Kakamega in the said Misc. Award No. 127 of 1999.

4. We  need  to  mention  that  while  the  appeal  to  the  Appeals Committee was   pending   hearing,  on 25th  June  2005 the deceased filed a Judicial Review Application (HC Misc. Appl. No. 77 of 2003) before the High Court at Kakamega and sought an order  of  certiorari  to  quash  the  original  Tribunal  Award.That application was dismissed on 15th April2005.

5. Boaz was not amused with the decision of the Appeal Committee. So on 21st February 2008,  he filed a Notice of Motion  in the Chief Magistrate's  Court in the said Misc. Award No. 127 of 1999 and prayed for the review and setting aside of the  court's  order of 16th  July 2007 which adopted the Appeals Committee's  decision as, in his view, the Appeals Committee's decision was illegal having been obtained long after the 30 days period given by the Land Dispute Tribunal  Act for appeals to the Appeals Committee.  In its ruling of 23rd March 2010, the Kakamega Senior Resident Magistrate dismissed the application holding that although there were two parallel awards in the file, it  had  no  jurisdiction to review  the  Appeals Committee's decision  and  advised  Boaz  to  go to  the High  Court  if he  so wished.  Boaz took that advice and filed Kakamega  HCCA No.43 of 2010.  Dulu, J. allowed the appeal and set aside the award by  the  Appeals  Committee  holding  that  the  appeal  to  the Appeals Committee  having  been  filed  way  after  the  30  days period had expired, the Appeals Committee had no jurisdiction to  entertain  it.  This appeal, brought  by Sapientia  Khasatshi Shibachi,  the   legal   representative of   Andrew Shibachi Ikhunyalo (deceased), is against that decision.

6. The  appellant  raised  3  main  points  in his  eleven  grounds  of appeal.  They are that whereas the learned Judge quite correctly stated that he had supervisory  jurisdiction to correct errors of the subordinate  court, he erred in sustaining the Tribunal Award which  had  not  only  been  given  without  jurisdiction  and  in defiance of the provisions of the Limitation of Actions Act but had  also  been  withdrawn;  that  the  learned  Judge  heard  and decided the appeal when respondent had died and had not been substituted;  that  the  learned  Judge  erred  in  finding  that  the subordinate court had jurisdiction to review its decision.

7.  On  ground  1  Mr.  Mokua,  learned  counsel  for  the  appellant , submitted that had the learned Judge properly  re-evaluated  the evidence on record and taken a broad view of the entire dispute, he would  have noted  that the Tribunal  had  no  jurisdiction  to entertain  a claim  of ownership  to land  and  set aside  both its award  and  that  of  the  Appeals  Committee  thus  leaving  the parties to go to a court  of competent  jurisdiction  to try their dispute; that the  respondent's  claim  which was lodged  before the  Tribunal about 20 years  after  the deceased had been registered as the proprietor of the suit land had been time barred under  the  Limitation   of  Actions  Act  arid  the  Tribunal  had therefore  no  jurisdiction  to entertain  the original  dispute;  and that immediately  after the Tribunal gave its award, by his letter of 26th August 1999, the District officer Ikolomani recalled that award and stated that the claim was to be heard de novo hence the  Senior  Resident  Magistrate  should  nof  have  adopted  the Tribunal's  award.

8. On ground 2 counsel submitted that at the time of hearing the appeal  Andrew  Shibachi  Ikhunyalo  who  was the  appellant  in that  appeal  had already  died. On  ground  3  he  faulted  the learned Judge for finding that the subordinate court had jurisdiction to   review its order adopting the Appeals Committee's  decision. He said that under the Land Disputes Tribunal Act (the Act), the subordinate court's role with regard to the Tribunal's  and  the Appeals  Committee's  decision  was purely administrative: to adopt them as they are without any alterations. With those  submissions,  Mr. Mokua  urged us to allow this appeal.

9. In response to those submissions, Mr. Shifwoka, learned counsel for the respondent, submitted  that  this appeal has no merit at all as the appellant was indolent and failed to invoke the provisions of the Land Disputes  Tribunal Act to challenge the Tribunal award. Under the Act, the appellant had a right to appeal against the Tribunal award within 30 days but he did not do so.  Instead he filed a judicial review application after 4 years which was dismissed after which he appealed to the Appeals Committee. The Appeals   Committee made an  award the adoption of which  led  to two contradictory  judgments on the same issue. Those appeal proceedings were clearly irregular and the learned Judge  was right in holding that the trial court had jurisdiction  to  review  and  set  aside  its  order  adopting  the Appeals Committee's decision. In that regard counsel submitted  that  the  case  of  Zedekiah  M.  Mwale  v.  Bikeke Farm  Directors & Another, Kitale  HCCA  No. 25 of 1998 is distinguishable as in that case the subordinate court was being asked to review its order and require the Tribunal to reconsider its award which is not the case in this matter.

10. Regarding the death of original appellant, the deceased, counsel pointed out that he died after the filing of written submissions pursuant to the directions given by the learned Judge and before the Judge gave the date for judgment.   So as it were the appeal had been heard before the original appellant's death and all that was remaining was determining it.  He said that there was therefore no error in the appeal proceedings.

11. We have considered  these rival submissions. As we stated in Callen  Magoma Omari v. Suneka Land  Disputes  Tribunal & Others, Civil Appeal  No. 87 of 2012,

"The Tribunals constituted all over the country under the repealed Land Disputes Tribunal Act hardly appreciated the scope of their jurisdiction.  We know this from the many appeals that have come to the High Court and this Court   from   their decisions. To the best of our knowledge, they adjudicated on all claims placed before them.  In  the  process,  they  caused  grave  injustice  in many cases.   Thank God  they  are  no more,  the  Land Disputes Tribunal Act having been repealed.   Although we are aware of those injustices and in the present case it is manifest that the Tribunal had no jurisdiction to entertain a claim of title to land, we have no choice but to dismiss this appeal. This is because we entirely concur with the learned Judge that public policy demands that litigation must come to an end even where, at no fault of the court, justice has not been done. To allow this appeal and uphold the appellant's claim will open a Pandora's box and set a dangerous precedent that will lead to the resurrection of numerous determined cases in respect of administrative bodies not only under the Act but also in other areas.  That will create havoc in the country. "

12. The above holding also applies in this case.  The deceased was indolent  and  failed  to  follow  the  procedure  set  out  in  the repealed  Act   Being  aggrieved  by  the  Tribunal  decision, he should have appealed to the Appeals Committee within 30 days. Instead he appealed  after  four years  and even  then  after  had filed a judicial review application which was dismissed.

13.      In the circumstances, we find that the Appeals Committee had no jurisdiction to entertain the deceased's appeal. It follows that the learned Judge was right in setting aside that Committee's decision .Consequently, we find no merit in this appeal and we accordingly dismiss it with costs. We so order.

DATED and delivered at Kisumu this 5th day of March 2015.

W.KARANJA

………………….…

JUDGE OF APPEAL

D.K. MARAGA

........................

JUDGE OF APPEAL

S. ole KANTAI

…………………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR